BEFORE THE HONOURABLE SUPREME COURT OF INDIA

IN THE MATTER OF

RAM SHANKAR SINGH & ORS.

VERSUS

STATE OF UTTAR PRADESH

WRITTEN SUBMISSION ON BEHALF OF THE

PETITIONER

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TABLE OF CONTENTS:-

 LIST OF ABREVIATIONS
 INDEX OF AUTHORITIES
 STATEMENT OF JURISDICTION
 STATEMENT OF FACTS
 ISSUES RAISED BEFORE THE COURT
 SUMMARY OF ARGUMENTS
 ADVANCED ARGUMENTS
 PRAYER

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TABLES OF ABBRIVIATION:-
 A.I.R. ………. All India Reporter
 S.C. ………. Supreme Court
 S.C.C. ………. Supreme Court Cases
 Edn. ………. Edition
 Sec. ………. Section
 All E.R. ………. All England Law Reports
 Q.B.D ………. Law Reports, Queen’s Bench Division
 Ibid. ………. Same as above
 S.C.R . ………. Supreme Court Reports.
 Bom.LR ………. Bombay Law Report
 Exch. ………. Exchange
 Eng. Rep. ………. England Report
 Anr., ……….An other
 Anor ………. And others
 SCD ………. Supreme Court Decision
 ILR ..……… Indian Law Reports
 PC ……….. Professional corporation
 Supra .………. Same authority at a later point

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INDEX OF AUTHORITIES:-

STATUES:-

 INDIAN PENAL CODE 1860

1 . Musakhan And Ors. vs State Of Maharashtra on 11 October, 1976

2. Pran Krishna Chakravarty And Ors. vs Emperor on 6 September, 1934

3. Jetha Ram vs State on 6 August, 2009

4. State of HP vs. Nirmala Devi on 10 April 2017

5. Om Parkash Tilak Chand The State on 23 May 1958

6. Lilabati Kanjilal & Ors vs. The State on 14 August 1964

BOOKS REFERRED:-

 P.S.A. Pillai’s, CRIMINAL LAW (13th ed)

LEGAL DATABASES REFERRED:-

1. Live Law, https://www.livelaw.in

2. Indian Kanoon, https://indiankanoon.org

3. Manupatra Online Resources, http://www.manupatra.com

4
STATEMENT OF JURISDICTION:-

1. The Petitioner have approached this Hon’ble Supreme Court under section 345 & 392 of
Indian Penal Code.

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STATEMENT OF FACTS:-

The occurrence of dacoity which was the subject matter of the charge against the appellants and
others, is said to have taken place at the house of one Kalapnath Singh whom we shall call the
complainant. He sent a written report to the police station at Mohammadabad, sub-district Ghosi,
through the village chowkidar That report was treated as the first information dated 4-6-1951 at
3-15 A.M. The police station is about four miles from village Dangauli, where the occurrence is
Said to have taken place.

The report is to the effect that between 1 and 2 A.M., when the complainant, his brother-in-law
and his servant Baljore were sleeping on separate cots in the open courtyard in front of the
residential house, they were awakened by the intrusion of 14 or 15 persons armed with lathis and
spears. Some of the dacoits beat the complainant, some of them kept watch on the three (persons
aforesaid and the others got the entrance opened by one of the female inmates of the house, Mt.
Pyari the complainant's sister-in-law.

Some of the dacoits entered the premises and removed boxes containing ornaments and clothes.
The dacoits are also said to have snatched away some ornaments from the neck of the
complainant's wife, Mt. Saraswati . On an alarm being raised by , Surajbali Singh , Balai Ahir
(not examined), Chhotu Singh , Ramchandra Tiwari , and Jagdish Singh of the village arrived.

Some of the dacoits also beat P.Ws. 3 and 6 aforesaid. As more people of the village arrived, the
dacoits made good their escape with their booty. It was also alleged that the dacoits had been
lighting electric torches in the light of which, as also of a lantern kept burning at the door, the
dacoits were recognized and the appellants along with three others of the very same village of the
complainant were named as the accused and articles worth Rs. 500 are said to have been looted
away.

The three appellants belong to the neighbouring village called Alipur. The Sub-Inspector (P. W.
14) arrived at the place of occurrence at 5 A.M. When he reached the spot, the complainant gave
him a list of stolen property . The Sub-Inspector inspected the locality and found things scattered
here and there. He also found a lantern hanging at the door of which he took possession.

About three furlongs to the west of the house of the complainant he found three boxes and some
torn pieces of cloth. He took possession of them and drew up recovery lists. He sent the injured
persons, namely, the complainant , Suraj Ball Singh and Ramchandra Tiwari who all had simple
injuries caused by a blunt weapon like a lathi. He interrogated the complainant and the other
eyewitnesses and got the statements of some of those witnesses recorded under Section 164,
Criminal P. C.

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ISSUES RAISED BEFORE THE COURT:-

1. WHETHER THE ACCUSED WILL BE LIABLE FOR THE COMMISSION OF OFFENCE

2. WHETTHER PETITIONER’S PETITION WILL ALLOW BY THE HON’BLE SUPREME

3. ON WHAT BASIS/ GROUNDS HE WILL FILE PETITION BEFORE THE HON’BLE

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SUMMARY OF ARGUMENTS:-

ISSUE I - WHETHER THE ACCUSED WILL BE LIABLE FOR THE COMMISSION

No the accused will not be liable for the commission of offence because it doesnot fulfill the
essential elements of section 395 of IPC.

ISSUE II - WHETTHER THE PETITIONER’S PETITION WILL ALLOW BY THE

Yes the petitioner’s petition should be allowed by the court though it doesn’t full essential of
section 395 . But it fulfilling the essential elements of section 342 & 392 i.e. the sections given
by the petitioner for defence.

ISSUE III - ON WHAT BASIS/ GROUNDS HE WILL FILE PETITION BEFORE THE
HON’BLE SUPREME COURT?

Petitioner will file the petition on the basis of section 342 & section 392 because it fulfils the
essential elements of these sections. But it doesnot fulfill the essential elements of section 395 of
IPC.

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ADVANCED ARGUMENTS:-

1.WHETHER THE ACCUSED WILL BE LIABLE FOR THE COMMISSION OF

No the accused will not be liable for the commission of offence because it doesnot fulfill the
essential elements of section 395 of IPC.

CASES OF SECTION 395:-

1. Musakhan And Ors. vs State Of Maharashtra on 11 October, 1976

The appellants were convicted under Section 395, I.P.C. to rigorous imprisonment for two years
and a fine of Rs. 100/- each, under Sections 323/149 to three months rigorous imprisonment,
under Sections 427/149 to one year's rigorous imprisonment, under Sections 435/149, I.P.C. to
two years - rigorous imprisonment and a fine of Rs. 100/- each under Sections 457/149, I.P.C. to
two years rigorous imprisonment and under Section 147, I.P.C. to one year's rigorous
imprisonment all the sentences to run concurrently. For the purpose of brevity instead of naming
the accused individually they will be referred to in this judgment as 'A' No. so and so. Appellant
No. 1 Musa Khan is A-4, appellant No. 2 Sardar Khan is A-7, appellant No. 3 Jani is A-8
appellant No.4 Mohd. Fashiuddin is A-9 appellant No. 5 Mohd Eqbal is A-11, appellant No. 6
Abdul Hamid is A-12, appellant No. 7 Saber Ali Khan is A-20 and appellant No. 8 Mohd. Azam
Khan is A-22.

We find that he was a young man of 20 years in 1968 when the occurrence took place and he is
the brother of A-11 and A-12. The only evidence of his participation in the incident at the Bharat
Lodge consists of P.W. 1 Prakash and P.W. 16 Vishwanath, So far as P.W. 16 is concerned his
evidence has been rejected as he was not able to identify the appellant at a test identification
parade. Further more, in view of the evidence of P.W. 16 extracted above, it would appear that
he does not mention A-4 as one of the persons who had taken part in removing the cash box from
the counter. In these circumstances, therefore, A-4 can only be convicted at the most under
Sections 149/ 425, I.P.C. As this appellant does not appear to have taken any part either in the
raid which was made at the Engineering College hostel or at the chawl he can only be
responsible for the mischief which was caused at the Bharat Lodge. As his conviction under
Sections 395/149 fails, the appellant can only be convicted under Sections 149/425, I.P.C. The
other convictions and sentences recorded against him are set aside. As, however, the appellant
was a boy of 20 years, his case clearly falls within the purview of the Probation of Offenders
Act, 1958. The Probation of Offenders Act is a social legislation which is meant to reform
juvenile offenders so as to prevent them from becoming hardened criminals by providing an
educative and reformative treatment to them by the Government Unfortunately, though the
provisions of Section 6 of the Probation of Offenders Act are mandatory, the Courts do not
appear to make wise use of these provisions which is necessary to protect our younger generation
from becoming professional criminals and, therefore, a menace to the society. It may be that the
appellant A-4 was not dealt with under the provisions of Section 6 of the Probation of Offenders
Act because of the charge under Section 395, I.P.C. but that charge having failed, there is no

9
impediment now in his being dealt with under the provisions of Section 6 of the Probation of
Offenders Act. In these circumstances, therefore, we would set aside the convictions and
sentences imposed on A-4 Musa Khan and direct that he be released on his entering into a bond
with two sureties of Rs. 500/- each for a period of one year in order to keep the peace and be of
good behavior. The appellant will report to the Probation Officer appointed within the
jurisdiction of the place where he resides.

So far as A-20 Saber Ali Khan and A-22 Mohd. Azam Khan are concerned they have been
expressly named by P. Ws. 1 and 16 as being members of the mob which attacked the Bharat
Lodge and which actually participated in stealing away the cash box. Both these accused had
attacked the counter along with two others and had forcibly removed the cash box containing
few hundred rupees and, therefore, they cannot escape conviction under Section 392, I.P.C. even
if the charge under Sections 149/395 fails. We might like to mention that it was not at all
necessary for the learned Additional Sessions Judge to have framed a charge under Sections
149/395, I.P.C. because an offence under Section 395, I.P.C. comes into existence only when an
act of dacoity is committed by five or more persons jointly, and, therefore, the question of
applying Section 149, I.PC. is a mere surplusage. At any rate since the number of persons who
have been proved to have stolen the cash box is less than five, the charge under Section 395,
I.P.C. as also that under Section 149, I.P.C. must necessarily fail. We, therefore, alter the
conviction of A-20 Saber Ali Khan and A-22 Mohd. Azam from that under Sections 149/395,
I.P.C. to that under Section 392, I.P.C. simpliciter and reduce their sentence under this section to
one year's rigorous imprisonment each while maintaining the fine imposed on them by the Trial
Court. The convictions and sentences on other counts are set aside.

On a consideration, therefore, of the evidence and circumstances of the case, we allow this
appeal to this extent that A-8 Jani is acquitted of all the charges framed against him and is
directed to be set at liberty forthwith. A-4 Musa Khan, A-7 Sardar Khan and A-9 Mohd.
Fasihuddin are dealt with under Sections 4 and 6 of the Probation of Offenders Act and their
convictions and sentences are set aside and they are directed to be released on their executing a
bond with two sureties of Rs. 500/-each for a period of one year in order to keep the peace and
be of good behavior and all of them will report to the nearest Probation Officer in their range.
The conviction of A-12 Abdul Hamid under Sections 149/427, I.P.C. is upheld but his sentence
is reduced to three months rigorous imprisonment. His conviction under Sections, 149/395,
I.P.C. is set aside while his conviction under Section 147, I.P.C. will stand. The convictions
under Sections 149/395, I.P.C. as against A-ll, Mohd. Eqbal, A-20 Saber Ali Khan and A-22
Mohd. Azam Khan are altered to that under Section 392, I.P.C. and their sentence is reduced
from two years to one year's rigorous imprisonment under this section. As there is no reliable
evidence to prove the participation of any of the appellants in the incident of arson at the Chawl
of Jogendra Singh, the convictions and sentences imposed on all the appellants under Sections
149/435, I.P.C. are hereby set aside. The other convictions as also the sentences passed on these
appellants are confirmed. In respect of all the accused the sentences are ordered to run
concurrently.

2. Pran Krishna Chakravarty And Ors. vs Emperor on 6 September, 1934

10
It will be noticed that in the numbering of the accused persons given above, Nos. 5, 8 and 10
have been omitted. These three numbers were those of Asoke Ranjan Ghose, Sasadhar Sarkar
and Lalu Panda respectively, who after the charges were framed, pleaded guilty to the two
charges, one under Sections 395/396, I.P. C, and the other under Sections 395/120-B, I.P.C., that
were framed against each of them and were convicted on their own pleas and were sentenced to
undergo rigorous imprisonment for 5 years on each of the said charges, the sentences to run
concurrently. In the circumstances to which we have referred we are unable to hold that the man
who fired the gun knew that the act was so imminently dangerous that it must in all probability
have caused death or that the act would cause such bodily injury as was likely to cause death,
elements which are contemplated by Clause 4 of Section 300, I.P.C. In our opinion, therefore the
act did not amount to murder" within the meaning of the Indian Penal Code. The result is that
the conviction which the learned commissioners have recorded under Sections 395 and 396, I.P.
C, cannot be sustained and such of the persons who may be found guilty of the offence of
dacoity will have to be convicted under Section 395, I.P.C. instead. (His Lordship then
considered the case of each of the accused and the judgment proceeded). As regards sentences
we cannot overlook the fact that the dacoity planned and committed was of the worst possible
description. The gravity of the crime cannot be over-stated and deterrent punishments are
therefore called for.

Pran Krishna Chakravarty (29 years) and No. 3, Hrishikesh Bhattacherjya (19 years) were the
two leaders in every sense of the term. They must have the maximum sentence of transportation
for life under Section 395, I.P.C.; No. 2, Satyabrata Chakravarty (18 years), No. 4, Saroj Kumar
Bose (17 years) and No. 7, Prafulla Narain Sanyal (20 years)-inspite of all that has been said on
behalf of accused 7 to show that he took a minor part in the dacoity itself, we are of opinion that
there is enough to indicate that though he was not a leader such as accused 1 and 3 he was
certainly an active member of the party and that he and Nos. 2 and 4 should go in the same
category as regards sentence. We sentence each of these accused to rigorous imprisonment for 10
years under Section 395, I.P.C.; No. 6, Haripada Basu (20 years) and No. 10, Ram Krishna
Sarkar (19 years)-these two accused took a comparatively subordinate part in the conspiracy and
in the dacoity and we sentence each of them to undergo rigorous imprisonment for seven years;
No. 11, Abdul Kader Chowdhury (28 years)-he was not present at the dacoity but was one of the
more important members of the conspiracy. He should undergo rigorous imprisonment for seven
years under Section 395/120-B, I.P. 0.; No. 12, Kiran Chandra De (20 years)-he was not present
at the dacoity. We think in his case a sentence of five years' rigorous imprisonment under
Sections 395/120-B, I.P.C. will meet the requirements of the case; No. 9, Kalipada Sarkar is
acquitted and discharged. No separate sentences are passed upon the other charges on which the
accused persons have also been convicted.

2. WHETTHER THE PETITIONER’S PETITION WILL ALLOW BY THE HON’BLE

Yes the petitioner’s petition should be allowed by the court though it doesn’t full essential of
section 395 . But it fulfilling the essential elements of section 345 & 392 i.e. the sections given
by the petitioner for defence.

11
CASES OF SECTION 392:-

1. Jetha Ram vs State on 6 August, 2009

Appellant Jetha Ram s/o. Jagaji was charged for the offences of Sections 366 and 376 IPC ( in
relation to wife of PW 1 Jetha Ram s/o. Pema) and also for the offence of Section 392 IPC
regarding her ornaments. One other accused Bhanwar Lal was also charged for the offence of
Section 411 IPC - appellant per judgment under consideration is acquitted for other charge for
the offences of Sections 366 & 376 IPC and is convicted and sentence for the offence of
Sections 392 IPC.

The prosecution, in total, examined 32 witnesses. As above, appellant is convicted for the
offence of Section 392 IPC and is acquitted of other charges. Thus, alleged facts and events and
also the evidence not relevant for the offence of Section 392 IPC, hardly needs to be gone into
detail. For the offence of Section 392 IPC, evidence is of PW 1 Jetha and his the wife
prosecutrix PW 7 who has identified recovered articles to be her's and PW 7 also deposes about
taking of these ornaments from her person by appellant. Head Constable PW 32 investigating the
matter on information furnished by appellant, recovered the articles. Tara Chand PW 3, Girdhari
PW 11, Achla Ram PW 12, Bhanwar Lal PW 13, Jawahar Singh PW 19, Jetharam PW 19,
Mangilal PW 23, Gopilal PW 24 are witnesses of recovery etc. of which PWs 11, 12, 13, 14, 19,
23 and 24 are declared hostile by the prosecution. Before Tara Chand PW 20, the then Executive
Magistrate, articles were identified by PW 1 and PW 7.

As per appellant, he is falsely implicated. In defence, is examined the then Judicial Magistrate
who recorded statement Ex.D2 undler Section 164 Cr.P.C. of witness Smt Dharmi PW 7 Art.2
"kakni", Art. 3 "uttarni", Art. 4 "Jhela Jori" and Art.5 silver geli alleged to have been recovered.

Learned trial Judge, describing and analyzing the evidence in detail, for the reasons and
circumstances mentioned in judgment acquitted appellant for the offences of Sections 366 and
376 IPC and convicted for the offence of Section 392 IPC.

For recovery of melted silver itself, learned trial Judge has held that no inference on the basis of
this recovery and for kankni is Ex.P3 along with other circumstances.

Appellant is acquitted for the offence of Sections 366 and 376 IPC, meaning thereby absence of
force, threat, eloping, inducement, force and like. Though not necessarily, but if for continuous
acts, the above elements are found to be missing, then certainly, for acts related to same incident
and of same time, more strong and particular specific evidence is certainly required. Rarely can
be for the simultaneous actions of such alleged nature of same time duration elements can be said
to be proved for one act and not for other act - any how for the above reasons, it cannot be
inferred that above silver articles of PW 7 were taken without her consent or extortionally, as
such, appellant is to be acquitted of charge of Section 392 IPC. The articles be returned to Smt.
Dharmi PW 7 as is ordered by the learned trial Judge.

2. State Of H.P vs Nirmala Devi on 10 April, 2017

12
Attempts by life convicts- [When any person offending under this section is under sentence
of [imprisonment for life], he may, if hurt is caused, be punished with death.] As is clear from the bare
reading of the aforesaid sections, offence mentioned therein are of serious nature. Maximum
‘imprisonment’ for committing offence under Section 328 IPC is 10 years as well as fine. Likewise, the
punishment stipulated in Section 392 IPC is ‘rigorous imprisonment’ for a term which may extend to 10
years, as well as fine. In case of highway robbery between sunset and sunrise, imprisonment can be
extended even to 14 years, though that is not the case here. Insofar as Section 307 IPC is concerned,
which relates to commission of offence by attempting to murder, again maximum sentence of
imprisonment of either description (i.e. simple or rigorous) upto 10 years can be awarded, in addition to
making the convict liable to pay fine. This punishment can go upto life imprisonment if hurt is caused to
any person by an act which is done with the intention or knowledge that it may cause death.

In the instant case, hurt is caused. Following aspects are clearly discernible from the reading of
these provisions: The offences mentioned under all these Sections are of serious nature.
Maximum penalty, under normal circumstances, is 10 years which under certain circumstances
can even be life imprisonment (Section 307 IPC) or 14 years (under Section 392 IPC) Whereas
imprisonment under Sections 307 IPC and 328 IPC can be of either description, namely, ‘simple
imprisonment’ or ‘rigorous imprisonment’ and, therefore, it is left to the discretion of the trial
court to award any of these depending upon the circumstances of a case, insofar as punishment
under Section 392 IPC is concerned there is no such discretion and the imprisonment has to be
rigorous in nature.

In the present case, High Court by its judgment has punished the accused only with fine after
affirming the finding of the guilt recorded by the trial court.

In an early decision of Allahabad High Court in Badri Prasad Vs. Emperor, (1922) ILR 44 All
538, the Division Bench of the Court had occasion to consider the punishment in context of
Section 392 IPC. In the above case for an offence under Section 392 IPC, the Magistrate
inflicted a fine of Rs.100/- with an alternative period of imprisonment, and if the fine was not
paid with the further sentence of 30 stripes. Appeal was filed by Badri Prasad which was
admitted upon the question of sentence. A notice was also issued by the High Court why
sentence should not be enhanced or otherwise altered.

The convict was heard on the quantum of punishment. She pleased for a lenient view being the
first offender and a young lady of about 40 years in age. She also stated that she has three minor
sons and out of them two are mentally unsound.”

Trial court, while sentencing the appellant has thus taken above circumstances into
consideration and for offences under Section 328, 307 and 392 IPC has awarded imprisonment
of two years only with a fine of Rs. 2,000/- each.

The maximum sentence under Section 328 is ten years, under Section 307 is ten years and in
case of hurt, it is life imprisonment or such punishment, as mentioned above. In Section 392
IPC, the maximum punishment is for the period of fourteen years.

CASES OF SECTION 342:-

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1. Om Parkash Tilak Chand vs The State on 23 May, 1958

Om Parkash, a clerk in the office of the District Inspector of Schools, Ludhiana, has instituted an
appeal in this Court from his conviction under Section 307, Indian Penal Code, and the
sentence of three years' rigorous imprisonment passed by the Additional Sessions Judge,
Ludhiana. The police had challaned besides Om Parkash, his mother Dwarki Devi, and his
brothers Romesh Chander and Surinder.

The Committing Magistrate discharged Romesh Chander and Surinder, and committed to the
Court of Session Om Parkash and Dwarki Devi for trial under Section 307 read with Section 34,
and under Section 342, Indian Penal Code, Dwarki Devi has been acquitted. The Sessions
Judge also found that the charge under Section 342, Indian, Penal Code, was not proved against
Om Parkash.

This attitude of mind towards Bimla Devi also explains that two months prior to her admission in
the Civil Hospital when Bimla Devi got an opportunity to leave the house she was pursued,
caught and forcibly dragged home by the brothers of the accused, and on account of her feeble
state of health, she could not offer any effective resistance.

The Additional Sessions Judge giving benefit of doubt acquitted the accused of the charge under
Section 342, Indian Penal Code. He found that Bimla Devi's movements were restricted to a
certain extent but from the evidence on the record he did not feel justified in drawing an
inference, that she was wrongfully confined within the contemplation of Section 342, Indian
Penal Code. He arrived at this decision because there was evidence that Bimla Devi went up-
stairs and the gestures she made to some women in the neighbouring houses presupposed to a
certain extent the freedom of movement.

A criminal revision has been filed (Criminal Revision No. 1083 of 1957) praying for
enhancement of sentence passed on Om Parkash under Section 307, Indian Penal Code, In the
same petition it is also prayed that the order acquitting Om Parkash under Section 342, Indian
Penal Code, and also the order of acquittal passed in favour of Dwarki Devi should be set aside.
Om Parkash has been awarded a substantial sentence of three years' rigorous imprisonment and I
do not consider the sentence to be inadequate.

The Sessions Judge regarding his reasoning and conclusion which led him to acquit Om Parkash
of the offence under Section 342, Indian Penal Code, hut as he has been found guilty; under
Section 307 Indian Penal Code, I do not consider it advisable to set aside the order of his
acquittal. Dwarki Devi was given the benefit of doubt and acquitted. I do not consider it proper
to interfere with the conclusions of the Sessions Judge. The Criminal revision No. 1083 of 1957
is, therefore, dismissed.

14
2. Lilabati Kanjilal And Ors. vs The State on 14 August, 1964

This Rule was issued upon an application of tour persons against whom a proceeding was
pending in the Court of the Magistrate at Ranaghat and a charge under Section 342, I.P.C. has
been framed. The prayer of those petitioners was for quashing the proceeding

The background in which this proceeding was commenced appears from the materials on the
record and also certain other records to which reference has been made in the petition upon
which the Rule was issued. Those are that one Lilabati Kanjilal, the first petitioner, is a teacher in
a school named Nasra Girls' School at Ranaghat in the district of Nadia. The S.D.O., Ranaghat,
is also the Administrator of that School. The said Lilabati Kanjilal had been served with a notice
of termination of her employment as a teacher of that school on 29th of September 1.963 giving
her three months notice for the termination to take effect from 1st of January 1964. The said
notice was given by the S.D.O., Ranaghat, as an Administrator of the Nasra Girls' High School.
Lilabati Kanjilal took steps for avoiding that termination of her employment in the school and it
appears that a letter, dated 26th of December 1963 was written by the Secretary, Board of
Secondary Education, West Bengal, to the Administrator, Nasra Girls' High School requesting
the latter to maintain 'status quo' in respect of the teacher pending further investigation by the
District inspectors of Schools, Nadia and final orders of the Board in that respect. In that letter it
had also been mentioned that it appeared from the Director of Public Instruction's report that the
aforesaid termination of service of Sm. Lilvbati Kanjilal, an Assistant Headmistress of the
School was irregular as un charge sheet was issued against her before the notice was served.
Copies of these letters appeared to have been sent to the Director of Public Instruction, West
Bengal, Lilabati Kanjilal and Satyapriya Roy, General Secretary, All Bengal Teachers'
Association. It was alleged that on 2nd January 1964 at about 7 A.M. the said Lilabati Kanfilal
had gone to the school and wanted to sign the attendance register of the teachers by showing to
the Headmistress a copy of the letter of the Board of Secondary Education, West Bengal,
abovementioned. The Headmistress of the school Sm. Usha Majumdar objected to Lilabati
Kanjilal's signing the attendance register. At about 8 A.M. that morning three other teachers of
Nasra Higher Secondary School, Ajit Kumar Sanyal, Hiralal Kritanya and Chandra Binode Das
first went into the office room of the school and then also entered into the room of the
Headmistress and sat down in the chairs in front of the Headmistress, Sm. Usha Majumdar and
insisted that Sm. Lilabati Kanjilal should be allowed to sign the attendance register and detained
the Headmistress, Sm. Usha Mujumdar by such insistence and also roused fear in the mind of
Sm. Usha Majumdar. After some time Sm. Usha Majumdar could go out of that room on her
giving the assurance that she would get the orders of the Administrator of the school (bat very
morning.

He called for the documents and then proceeded to consider the materials for deciding whether
the charge would be framed or not. That was obviously following Sub-section (2) of Section
251-A, Cr.P.C. How it will be sufficient the copies of documents proposed to be relied on by the
prosecution were given after, the framing of the charge and only before the examination of the
witnesses and now it complies with the provisions of Section 251-A particularly Sub-sections.
(1) and (2) of that section has baffled us? However; that may be, in that order the learned
Magistrate discussed the materials for holding that titers was no material that would warrant
framing of a charge either under Section 448, I.P.C. or under Section 11 of the West Bengal

15
Security Act, but he did hot say anything with regard to the allegation of an offence under
Section 143, I.P.C. and with regard to the allegation of an offence under Section 342, I.P.C. He
did not consider any material but simply said: "charge under Section 342, I.P.C. framed against
the accused persons and fixed 9th and 10th of July 1004 for examination of the prosecution
witnesses, Before those dates, however, this Court was moved on 6th of July 1984 and present
Rule Issued and the proceeding before the Magistrate had been directed to be stayed.

Appearing in support of the Rule for quashing the proceeding Mr. Kishore Mukherjee, learned
Advocate for the petitioners, has contended that the materials before the learned Magistrate do
not at all justify framing of a charge under Section 342, I.P.C. against any of the accused
persons. Mr. Mukherjee refers to the order, dated 5th of June 1964 for pointing out that while the
learned Magistrate had discussed the materials for holding that no charge under Section 448,
I.P.C. and Section 11 of the West Bengal Security Act could be framed the learned Magistrate
had not referred to any material as would justify framing of a charge under Section 342, I.P.C. in
that order. Mr. Mukherjee, therefore, submits that this proceeding as a whole and in particular
framing of the charge under Section 342, I.P.C. has not only been an abuse of the process of the
Court but also a misuse of the powers of the criminal Court which misuse of powers is only a
projection of the misuse that has been struck down by this Court against one of these petitioners,
that is Sri Lilabati Kanjilal by quashing the proceeding under Section 144, Cr.P.C. The events
which I have related in narrating the outline of the facts taken by reference to the particular dates
thereof do point powerfully to support Mr. Mukherjee's contention.

On behalf of the State the learned Advocate Mrs. J. Nag has taken me through the entire order
sheet, Mrs. Nag in her learning could not support the violation of the mandatory provisions under
Section 251-A, Cr.P.C. when procedure prescribed in that section was being followed as
allegations of offences friable by warrant procedure were before the Magistrate at that stage.
Mrs. Nag also points out that the offence for which only a charge has been framed, that is an
offence under Section 342, I.P.C. is punishable with a term of imprisonment which does not
exceed one year and, therefore, would be friable as a summons case under Chap. XX of the Code
and not as an warrant case under Chap XXI, In that respect Section 251, Cr.P.C. would not be
applicable at all. How ever, that may be Mrs. Nag has referred to the materials that were before
the learned Magistrate for framing the charge when he was for lowing the procedure under, 251-
A, Cr.P.C. that is, the information upon which the First Information Report was drawn up and
the "copies of the statement recorded by the police" under Section 161. Cr.P.C. during
investigation. She contended that those materials would fiscal justification for framing the charge
under Section 342, I.P.C. against all the four accused persons. I have devoted my consideration
to Filose materials and to the forceful argument of Mrs. Nag and have reached the definite, con
erosion that the materials do not warrant framing of a charge under Section 342. I.P.C. at all. At
the most there was an allegation of some insistence by words of mouth to be allowed to sign the
attendance register and in a way the Headmistress Sm. Usha Majumdar might have been
detained by such insistence. But this allegation, even at the highest, clearly shows that at the
material time Sm. Lilabati Kanjilal was not in the room of the Headmistress at all and other three
accused persons had kept them selves seated in chairs by the position of which Sm. Usha
Majumdar felt that she was being ungrounded. Neither the insistence by word of mouth nor mere
sitting around a person would satisfy the requirements of wrongful confinement was requires that
there must be voluntary obstruction to that person so as to prevent that person from proceeding in

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any direction in which that person has a right to proceed and such wrongful restraint had
prevented that person from proceeding beyond certain circumscribed limit. In the whole of the
materials before the learned Magistrate there is no basis for thinking that Sm. Usha Majumdar
was either obstructed or prevented from proceeding. In fact, the materials show that she did
proceed to go to the Administrator of the school who was no other than the S.D.O. I am,
therefore, clearly of the view that the charge framed under Section 342, I.P.C. cannot be
sustained and has been so framed on insufficient materials and by abuse of the powers of the
criminal Court. It is to be noticed that the S.D.O. of Ranaghat was also the Administrator of the
school and it was his action that was at the bottom of this trouble, If the early orders in the order
sheet of the Magistrate to which I have made reference has been made by that Magistrate, that is
the S.D.O. of Ranaghat, then it was reprehensible abuse of that power indeed by a person who
was interested in the case. I, however, put it on record that it does not appear clear from the order
sheet of the learned Magistrate nor the learned Advocate for the State, Mrs. Nag could throw any
light on the identity of the Magistrate who had passed those orders, whether he was the S.D.O.
B.M. Mandal or any other Magistrate, because the signatures appearing in the order sheet are so
cryptic as to be illegible.

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PRAYER:-

FOR THE FOREGOING REASONS, THE PETITIONERS RESPECTFULLY REQUESTS

ADJUDGE AND DECLARE THAT:

1. THE PETITIONER WILL NOT LIABLE FOR THE OFFENCE (COMMISSION OF

2. THE PETITIONR’S DEFECE (SECTION 342& 392 OF IPC 1860) SHOULD ACCEPT
AS THE VALID GROUND FOR DEFENCE .

3. THE PETITIONER’S APPEAL SHOULD GRANT BY THE COURT.

RESPECTFULLY SUBMITTED,

AGENTS FOR THE PETITIONER.

BA- LL.B (IV SEMESTER)

GU17R0300

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